Kazmierczak et al v. Reproductive Genetic Institute, Inc. et al
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 9/26/2012.Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
SHARI KAZMEIRCZAK, AARON
KAZMIERCZAK, LISA GEIGER, and BRETT
REPRODUCTIVE GENETICS INSTITUTE,
INC. and FEDERAL EXPRESS,
No. 10 C 05253
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
This case, removed from the Circuit Court of Cook County, Illinois, on the basis of
federal-question jurisdiction, now consists only of state-law claims against one defendant. The
plaintiffs move the Court to relinquish its supplemental jurisdiction over the remaining claims
and remand the case to state court. For the reasons explained below, the Court grants the motion
and remands the case.
Two couples, the Kazmierczaks and the Geigers, sued Federal Express and the
Reproductive Genetics Institute (“RGI”) when six frozen embryos were destroyed in transit from
RGI, in Illinois, to a fertility clinic in Michigan. Pursuant to a contract between the couples, the
Geigers had donated the embryos to the Kazmierczaks to aid them in conceiving a child through
in vitro fertilization. After the embryos arrived in Michigan unpreserved, the plaintiffs filed their
lawsuit in Illinois state court, invoking four common-law theories of relief: negligence, breach of
fiduciary duty, breach of contract, and bailment. Federal Express removed the case to federal
court pursuant to 28 U.S.C. § 1441, based upon its federal-question jurisdiction over claims
relating to lost or damaged goods transported by a common carrier. See Treiber & Staub, Inc. v.
United Parcel Service, 474 F.3d 379 (7th Cir. 2007). Discovery ensued, and nearly two years
after removal, and Federal Express moved for summary judgment on all counts against all
plaintiffs, primarily arguing that the claims against it were preempted by federal statute. RGI also
moved for partial summary judgment, on other grounds. Before responding to Federal Express’s
motion, the plaintiffs moved to voluntarily dismiss Federal Express and remand the case to state
court. This Court granted the motion to dismiss Federal Express with prejudice on July 18, 2012.
Now that the claims no longer implicate federal common-carrier law, the plaintiffs want the case
returned to state court. RGI objects.
“When federal claims drop out of the case, leaving only state-law claims, the district
court has broad discretion to decide whether to keep the case or relinquish supplemental
jurisdiction over the state-law claims.” RWJ Management Co., Inc. v. BP Products North
America, Inc., 672 F.3d 476, 478 (7th Cir. 2012). “A general presumption in favor of
relinquishment applies and is particularly strong where . . . the state-law claims are complex and
raise unsettled legal issues.” Id. If there has been “a substantial investment of the federal court’s
time,” however, the presumption may be overcome. Id.
This case now consists solely of state-law claims against RGI. The presumption of
relinquishment is strong because the case raises novel issues of law—or, at least questions about
the application of familiar principles to a novel and complex context. Among the negligent acts
and omissions alleged by the plaintiffs are failures “to properly safeguard embryos,” “to properly
preserve the cryopreservation tank for transportation,” and “to contract with a company familiar
with the processes necessary to preserve the embryos.” RGI’s defenses include arguments that
the embryo donors forfeited all of their rights and interests in the embryos as a result of their
contract with the Kazmierczaks. Illinois does not yet have a substantial body of case law
addressing the duties and standard of care of fertility clinics involved in the rights of ownership,
transport, preservation, and handling of human genetic material. 1 It remains to be seen how
Illinois courts will treat different theories of recovery for the wrongful destruction of human
embryos, pre-embryos, and genetic material, but given the novelty and importance of these
issues, they are best addressed by the state courts in the first instance. 2 See, e.g., 28 U.S.C.
§ 1367(c)(1) (district court may decline supplemental jurisdiction over “novel or complex issue
of state law”); Doe-2 v. McLean County Unit Dist. No. 5 Bd. of Directors, 593 F.3d 507, 513
(7th Cir. 2010) (dismissal without prejudice of state-law claims would be appropriate “[g]iven
the relatively novel issues of Illinois tort law presented by Doe–2's case”); United States v. Zima,
766 F.2d 1153, 1158 (7th Cir. 1985) (“[I]n cases involving complex or novel issues of state law,
the appellate courts have held that it is an abuse of discretion to retain jurisdiction after the
federal issue is disposed of at trial or even on appeal.”).
The field of reproductive technology is developing rapidly, and RGI does not contest the
plaintiffs’ assertion that there is not clearly established law in Illinois governing disputes arising
in this area. The Court’s own research has found few Illinois cases arising in this novel context,
and those it has found suffice to demonstrate that the issues may require reconciliation of various
lines of precedent to the exigencies of this rapidly developing and often contentious factual
context. For example, in 2005 an Illinois trial court allowed a wrongful death claim to go to trial
against a fertility clinic that failed to properly freeze a blastocyst, or pre-embryo. See Miller v.
Am. Infertility Group, No. 02 L 7394 (Cook County, Ill., Cir. Ct. 2005). On interlocutory appeal,
the Illinois Appellate Court held that the Illinois Wrongful Death Act “does not allow a cause of
action or recovery under the Act for the loss of an embryo created by in vitro fertilization that
has not been implanted into the mother.” Miller v. American Infertility Group of Illinois, 897
N.E.2d 837, 846 (Ill. App. Ct. 2008). The court’s analysis involved reconciling the Wrongful
Death Act and the Illinois Abortion Law, and parsing the very definition of “human being.”
The questions presented in this area are also fertile ground for scholarly inquiry. See, e.g.,
Lauren Russo, Comment: Microscopic Americans? A New Conception of the Right to Recover
for the Loss of a Pre-Embryo in Tort Law, 2009 MICH. ST. L. REV. 789, and sources cited therein.
Against the strong presumption of relinquishment, the Court sees no “good reasons” to
retain the case. See Whitely v. Moravec, 635 F.3d 308, 311 (7th Cir. 2011). Although this matter
has been pending for two years, the Court’s participation has been minimal. Discovery was not
contentious, and there were no motions to dismiss or other substantive engagement by the Court
(indeed, there have been only a handful of court appearances in the case). The present district
judge has presided only since June 5, 2012, and the request to remand came only six weeks later.
On remand, the parties would have to duplicate some ministerial efforts—such as RGI re-filing
its summary-judgment motion—but the state court will not “cover the same ground” because no
substantive evaluation has yet been made by this Court. See Miller v. Herman, 600 F.3d 726, 748
(7th Cir. 2010) (remand of claims likely to be appropriate where “none of them has yet been
addressed in any meaningful way”); Davis v. Cook County, 534 F.3d 650, 654 (7th Cir. 2008)
(even disposing of federal claims on summary judgment not an investment of “substantial
judicial resources”). Indeed, full briefing of RGI’s motion has not yet occurred. This Court has
not made nearly the investment of judicial resources as the district court made in RWJ, which
“held 35 hearings, issued 45 orders, and considered 70 motions” while the “parties compiled 21
volumes of discovery material.” 672 F.3d at 479. But even in that case, remanding to state court
was not an abuse of discretion, because the Court’s substantive engagement with the legal issues
was minimal. Id. at 480-81.
Considerations of judicial economy or duplication of efforts, then, are not compelling in
this case. And other reasons for retaining supplemental jurisdiction, such as the expiration of a
statute of limitations or “an absolutely clear” resolution of the remaining claims, are not present
here. See Sharp Electronics Corp. v. Metropolitan Life Ins. Co., 578 F.3d 505, 513-14 (7th Cir.
2009). Indeed, as the partial summary judgment motion would suggest, at least some of the
remaining claims will require a trial, leaving their resolution anything but clear.
As a final push for retention of jurisdiction, RGI predicts that it will simply remove the
case again once it obtains dismissal against the Geigers (as it is confident it will do), creating
complete diversity with the Kazmierczaks, who are domiciled in Michigan. The Court takes no
position on the viability of the Geigers’ claims other than to note that their proper disposition is
not obvious. But even if the state court dismisses the Geigers, RGI overlooks the fact that an
Illinois corporation cannot remove a case from state to federal court in Illinois. See 28 U.S.C.
§ 1441(b)(2). RGI thus far has admitted only that it is a “licensed corporation in the County of
Cook, Illinois” Answer, Dkt. 9 ¶ 1, which is meaningless for purposes of diversity jurisdiction.
But the Court can and does take judicial notice of the public records showing that RGI is in fact
incorporated in Illinois. Corporation File Detail Report, Illinois Secretary of State,
http://www.ilsos.gov/corporatellc/index.jsp (search results for “Reproductive Genetics Institute,
Inc.,” September 25, 2012). And that alone makes it a citizen of Illinois for purposes of diversity
jurisdiction. See 28 U.S.C. 1332(c)(1) (“a corporation shall be deemed to be a citizen of every
State and foreign state by which it has been incorporated”). So even if the dismissal of the
Geigers were a foregone conclusion, RGI would not be entitled to pop back to federal court by
invoking diversity jurisdiction.
For these reasons, the plaintiffs’ motion to remand to state court is GRANTED.
Date: September 26, 2012
Honorable John J. Tharp, Jr.
U.S. District Judge
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